16 The UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities

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1. Learning Outcomes

This chapter helps the students to understand:

  • The general protection available to the minority rights in the United Nations human rights regime;
  • The drafting history, importance, and provisions of the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities – 1992.

2. Introduction

The human rights regimes of the United Nations (UN) era earnestly focus to protect the dignity of each and every individual of the society. The dignity of life is embedded to the practice of the principles of equality and non-discrimination in every circumstance. The UN is based on the fundamental principles of the equality and non-discrimination in its entire move. The UN Charter does not contain any word like non-discrimination while Article 1 explaining the Purposes of the establishment of the UN mentions its spirit in clause 3: “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples … in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion ….” (Italics added). The establishment of the UN strongly promotes the universal peace and unity diminishing inequality based on unusual discriminations among peoples.

The primary goal of the UN from its very inception is to respect, protect, and promote the self-determination of the individual within the larger society. The centrality of the entire UN system is the protection of the individual’s rights. The individual is at the heart of every activity of the UN. The historical incidents before the establishment of the UN on the other hand enlighten a different story. The targeted exploitations of a certain group because of their race, sex, language, or religion have raged the world community various times. The groups rather than individual have become victim of various incidents including racial discriminations, ethnic cleansings, crimes against humanity, and crimes against peace etc. The curse of World Wars in most of the cases is directed toward the community inferior in numbers, non-dominant in society, and politically weak. The vulnerability of such minority groups of the society forced the world community to think of their immediate and urgent protection. The primary work of the League of Nations, between the two World Wars, was to ameliorate the sufferings of the minority communities of the world particularly of European countries.

The shifting nature of group protection and the failed mandates of the League of Nations are well reflected in the UN era from the very beginning. The unrelenting struggle of the Sub-Commission on Prevention of Discrimination and Protection of Minorities (a subsidiary body of the UN Commission on Human Rights between 1946 and 2006; now known as Advisory Committee of the Human Rights Council)) is realized only in 1992 when the UN General Assembly proclaimed the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities (the Minorities Declaration); one of the most comprehensive instruments on the protection of minorities worldwide. This module attempts to explain the drafting history of the Declaration, its importance, and its provisions.

  1. International Protection of Minorities before the Minorities Declaration

The protection of the rights of minorities in nineteenth century was constantly getting concerned with the growing nationalism justifying the demand of the unification of linguistic nations based on the principle of self-determination. The industrial revolution necessitated minority population to comply the dominant linguistic and cultural norms to minimize the pressure of the workforce. The preservation of self-identity for the minorities nevertheless, was becoming inadequate with the existing norms. The League of Nations promoted somehow with little impact and limited scope, the significance of the minority rights at least symbolic not practical to the international human rights law. Many bilateral minority treaties were signed between the Allied powers and the Eastern and Central European states. The move was actually to protect the interest of the European security rather than the disadvantaged groups but the central focus was the minority not the individual rights.

The drafters of the UN Charter as well as the Universal Declaration of Human Rights (UDHR), 1948, were much reluctant to add any provision specific to the protection of the minority rights. The agenda of minority protection did not vanish at all, in 1947 the Sub-Commission on the Prevention of Discrimination and Protection of Minorities was established as a subsidiary body of the UN Commission on Human Rights. The UN General Assembly recognizes that because of the diverse nature of minorities in different States, it is very difficult to adopt universally applicable norms. The General Assembly adopted a resolution 217 C (III) on the same day as the UDHR in 1948 which proclaimed that the United Nations “cannot remain indifferent to the fate of minorities”.

The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), 1948, which is considered to be constituting customary international law by the International Court of Justice (ICJ) with supra positive obligations, also validates the minority protection. Article 2 of the Convention describes genocide as;

an acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children from the group to another group.

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 1965, is not expressly referring but also offers minority protection within its field of application. It is rather the first instrument of the UN which establishes a Committee on the Elimination of All Forms of Racial Discrimination (CERD) to monitor and review State’s compliance under the treaty obligations. From the very beginning, the Committee consistently considers the examination of the minority situation through the periodic reports submitted by the member States. Reporting procedure is compulsory, not optional, for all ratifying States.

The only international treaty with binding enforcement over the ratifying States which signify the protection of the minority rights is the UN International Covenant on Civil and Political Rights (ICCPR) – 1966. Article 27 of the Covenant reads as;

In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

The protection provided by the Covenant is often emphasized to be for the individual member of the minority group instead for the minority as a group. The controversy of mere individual protection is denied by the wording of ‘in community with the other members’ in the final draft of Article 27. The provision of this Article is considered to promote collective benefits of the community through the protection of the individual’s rights. All the odds of State recognitions to the presence of certain minority community and State actions to the protection of minority rights are clarified by the General Comment 23 (1994) of the Human Rights Committee. It says that the recognition must be based on facts and the protection must include positive actions besides non-interferences. Still States employ ample rooms to escape the responsibility indicating loosely framed and ambiguous terminology of the Article.

 

Another Covenant of binding nature adopted in the same year 1966 by the UN General Assembly is the International Covenant on Economic, Social, and Cultural Rights (ICESCR). This Covenant nowhere mentions the term minority in any of its provisions; the Article 13 is of greater interest to the life of the minority rights regimes. Article 13 refers to “… the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions. It further empowers … the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles … as may be laid down by the State”.

The Convention on the Rights of the Child (CRC), 1989, is one of the widely accepted instruments of the UN being ratified by 193 States. The Convention enshrines many of the provisions toward the protection of rights of minority children. Articles 17 and 30 specifically incorporate the term minority to stress the concern. Article 17 encourages the mass media to cooperate in producing and disseminating material from diverse cultural sources and “to have particular regard to the linguistic needs of the child who belongs to a minority group”. Article 30 is specifically dedicated to the protection of the children belonging to ethnic, religious or linguistic minorities and guarantees that the same rights set forth in Article 27 of the ICCPR also apply to the children. It is still unusual that the Committee on the Rights of the Child had failed to make use of Article 30 and had not adopted any General Comments devoted to the minority children.

4. Drafting History of the Minorities Declaration

The birth of the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities is perceived to be the preliminary originator to the birth of the Minorities Declaration, 1992. The United States delegation suggested the Commission on Human rights to recommend the creation of a Sub-Commission on Freedom of Information and of the Press. The US move came in stark contrast to the Soviet delegation suggesting a similar body to prevent discrimination and protect minorities. The Council authorized the Commission to create three Sub-Commissions simultaneously – first on freedom of information and of the press, second on the prevention of discrimination, and the third on the protection of minorities. Finally only two Sub-Commissions one on freedom of information and of the press and the second jointly on the prevention of discrimination and the protection of minorities were established.

The second Sub-Commission got started with the matter on the prevention of discrimination and made exemplary advances in the field of racial discrimination. In the initial phase the protection of the minorities was undermined by the UN itself indicating the failed mandates of the League of Nations attached to them. The role of Sub-Commission to promote the minority protection was hampered until 1952 when it got impetus to make a presence within the UN hierarchy. The contribution of the Sub-Commission toward the drafting of the UDHR couldn’t be ignored. It envisioned protection of minority rights in the earlier drafts of the UDHR which was rejected by the drafting committee in the final version adopted by the UN General Assembly in 1948 devoid of any provisions pertaining to minorities.

The minority rights proposal introduced by the Delegations of the U.S.S.R., Denmark, and Yugoslavia was strenuously opposed particularly by the Latin American delegations that minorities were unknown in the New World. The Sub-Commission was asked to make a thorough study of the problem of minorities, in order that the UN may be able to take effective measures for the protection of racial, national, religious, or linguistic minorities. After the 1952 session, the concern of Sub-Commission to the existing situation of the minority enhanced manifold. The detailed studies to the minority rights were made by the Sub-Commission during the whole decade of the 1960s. It is only in 1977 that the Special Rapporteur to the Sub-Commission Francesco Capotorti produced his detailed study ‘Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities’. He also suggested that a ‘draft declaration’ must be prepared within the framework of the principles set forth in Article 27 of the ICCPR to the protection of minority rights.

The work of preparing the draft of the Declaration started in 1978 under the newly established open-ended Working Group of the Commission on Human Rights. The Yugoslavia was the first to present the initial draft of the Declaration. The draft added “national” to the ethnic, religious and linguistic minorities mentioned in Article 27of the ICCPR. During the next decade the drafting process of the Declaration was slow. The attention got impetus in the early 1990s. The initial draft complete in all respect comprising a Title, a Preamble and nine Articles, was submitted to the Commission in 1990. The review of the draft was completed the next year in 1991 at intensive sessions. The final text of Declaration was approved by the Commission on Human Rights in March 1992 and transmitted to the UN General Assembly with the same structure as mentioned above. The UN General Assembly adopted the Declaration by consensus resolution 47/135 of 18 December 1992 as to be called henceforth “the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities”.

5. The Minorities Declaration and its Provisions

The protection of minorities of the world has been a contested subject. Still there was no concrete instrument over the subject talking in detail to address the issues of minorities until recently. The delusion persisted within the UN system from its inception of individual rights versus group rights. The common approach within the system was, while rights of individuals were recognized, group rights’ concept was neglected. There was a dominant thinking that there is no need to have separate mechanisms for the protection of group rights. This opinion was rightly reflected in the UN Charter as well as the UDHR – both the documents lacked any specific provisions on the minority rights – the two core documents of the UN human rights regimes. The relentless effort of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities over the subject area made a room for the inclusion of minorities as a group within the system.

The Minorities Declaration is the expansion of the existing protections available within the UN systems particularly through the Article 27 of the ICCPR. The Declaration is not based on Article 27 but is inspired by the tenets of the Article. Thus the limitations of Article 27 do not apply to the Declaration. The Declaration does not provide any definition of the minorities like Article 27 of the ICCPR and other instruments. The Declaration although includes ‘national minorities’ within the existing ethnic, religious, and linguistic minorities of the Article 27. Professor Thornberry describes that the addition of the national minority is seen by some to be too European. The scope of national minority is much wider as described by Special Rapporteur Asbjorn Eide in his Commentary of the Working Group on Minorities to the Minorities Declaration (2005) – a more detailed and up to date study to the Declaration. The best ever acceptable definition of the minorities is provided by Special Rapporteur for the Sub-Commission Professor Francesco Capotorti in a special study on minorities in 1977:

A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members – being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.

The Declaration is non-binding in nature but is seen as reinforcement to the weak provisions of the Article 27. The Preamble considers that the promotion and protection of the minority rights contribute to the political and social stability of the States in which they live as opposed to the notion that minority communities are problematic to the State. It further emphasizes that the constant promotion and realization of the minority rights as an integral part of the development of society as a whole and within a democratic framework based on the rule of law, would contribute to the strengthening of friendship and cooperation among peoples and States – an essential element between good governance and human rights.

The Declaration, notes Professor Thornberry, is less tentatively expressed than Article 27. The negative notion like ‘shall not be denied’ is replaced by more obligatory terms like ‘State shall protect’ – the negative ‘shall not’ is replaced by positive ‘shall’ leaving affirmative responsibility over the State to fulfil the aspirations. The Article 1 of the Declaration reads as:

States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity. (Italics added)

It is now the positive responsibility of the State to protect the existence as well as identity of a minority rather than the discretion of the State to decide the existence of any minority over its territory.

Article 2 of the Declaration is far more comprehensive in that it has included all the odds as rights of the minorities. The minorities have the right to enjoy their own culture, to profess and practise their own religion, and to use their own language. They have the right to participate effectively in cultural, religious, social, economic and public life as well as in decision making at all levels compatible with the national legislation. They have the right to establish and maintain their own associations, as well as to establish and maintain contacts with different minority groups within and outside the State.

Article 3 is one of the important provisions which deny all the controversies to the individualistic nature of the Declaration. The protection of the Declaration is available individually as well as in community with other members of the minority group.

Article 4 describes that it is the responsibility of the State to provide adequate opportunities to learn history, tradition, language, culture as well as the mother tongue of the community. The state shall take measures for minority to enjoy full equality before the law, participate fully in the economic progress and development in the country.

Article 5 talks of inclusive National policies and programmes and inter-State cooperation to promote minority rights. Articles 6 and 7 talk of States cooperation to promote the rights contained in the Declaration.

Article 8 enjoins the negative rights that nothing in the Declaration hamper to enjoy any of the universal human rights. Article 9 seeks the cooperation of other instruments of the UN to promote the rights of the minority in the field of their competence.

6. Conclusions

The Minorities Declaration is the most comprehensive and the only international instrument which encourages the protection of minority rights worldwide. It is inspired by the Article 27 of the ICCPR which is the only international instrument to minority rights protection with binding enforcement. The Declaration has transformed the weak provisions of the Article 27 to greater clarity and enforceability. The Commentary of the Working Group on Minorities to the Minorities Declaration – 2005 has resolved many challenges of justifiability and implementation of the provisions. The continuous suppression of minority rights worldwide in an era of universal human rights can’t be overlooked. A better understanding and strong implementation of the provisions of the Declaration will not only go a long way to protect the rights of minorities of the world but will also help in building international peace, which often gets disturbed when the minorities are persecuted.

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Reference

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